How COVID Broke the Courts Blog 3 -(Negotiation)

August 19, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

COVID has altered the way we negotiate cases.

Communication isn’t the same.  At times, the new modes of connection are difficult to overcome.  Rapport, trust, sincerity and the degree of how emphatic a particular plea is just harder to convey if it’s anything other than in-person.

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Prosecutors are funny creatures.  I believe they are driven by decency, a quest for justice and a sense of duty.  I know because I was one and I really enjoyed it and found it fulfilling.

But understanding them and what makes them tick is far more complicated.  Many are younger and being a lawyer for the State is their first job in our profession.  Some of the more experienced ones have still never ventured outside the DA’s office.  Their world is like none-other.  I found it to be eerily similar to an echo chamber at times filled with adulation of citizens and the all-to-often somewhat self-assured notion that we had a monopoly on the truth.  The result is prosecutors often take the guilt of the accused (or proving the guilt of the accused) for granted.

I include this to say their view of cases — and often their firmness in sticking to their point — is often far different than mine.  When I’m negotiating with them for a better plea offer convincing them to simply walk-away and dismiss a case – it takes persuasion.

Knowing what motivates prosecutors is absolutely crucial in criminal defense.  And whether I’m trying to convince a prosecutor a certain case requires cooperation or collaboration — or I’m simply trying to convince them their poker hand is an offsuit 2-7 split — it is far more difficult to do it with short, choppy emails or text messages than it is just to sit and visit with them for a few minutes.

What tends to happen with phone calls or emails is the prosecutor tends to hear the message — perhaps miss some of the intonations I’m trying to convey — and then retreat back into their echo chamber to consider it further.  It shouldn’t come as a surprise it’s a far more difficult sale.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is a Texas Super Lawyer as designated by Thomson Reuters.




Getting Criminal Charges Dismissed

September 12, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

Criminal cases can be like snowballs — as they head downhill they can get harder to stop and they pick up momentum.  An experienced and skilled criminal defense lawyer knows when, how and why police or prosecutions will want to dismiss criminal cases.

The Top of the Mountain

Using our snowball analogy, the beginning of the criminal case (or the top of the mountain) is generally where the police get involved.  Frequently, that may be a traffic stop in the case of a DWI or drug seizure, or that can be where someone makes a report to police and police detectives get involved investigating an assault (as an example).

Will the police drop the case?  Perhaps.  It obviously depends on the type of offense and other factors weigh in such as the attitude of alleged victims and/or public pressure.  On DWI’s, for example, the police are under a great deal of pressure to pursue those types of cases.  Police agencies are reviewed regularly by MADD and other Police agencies actually apply for grants for the express purpose of prosecuting DWIs.  Those groups don’t like hearing that the police are dismissing charges on DWI arrests.  You can expect many agencies to have policies in place that don’t allow them to not-persue charges after a DWI arrest.

On other cases that the police investigate, it may be possible to either convince the police that the case isn’t worth pursuing.  Always have a lawyer when negotiating directly with law enforcement agencies!  Certain rules such as the attorney-client privilege and other rules of evidence protect you when your lawyer is dealing directly with law enforcement — not to mention an experienced criminal defense lawyer knows how to deal with police better than you.

Some police agencies will resist filing criminal cases on people who assist them in further investigations.  The most classic example is with narcotics and drug enforcement.  Again, having an attorney assist you in these types of negotiations can help assure that you are protected.

Down the Hill

Eventually, the case will make it’s way to the District Attorney’s office.  Once it gets there the “snowball” can be harder to stop.  Prosecutors have an affirmative duty under the Penal Code not to seek convictions — but to see that justice is done.  So they can and do dismiss cases or sometimes they’ll reject cases even though the police may want to prosecute.

Prosecutors control the Grand Jury process in felony prosecutions and often they will allow the defense to submit information (called a Grand Jury Packet) to the Grand Jury attempting to persuade them not to issue a true bill of indictment.  While the prosecutor doesn’t have direct control over the Grand Jury — if the Grand Jury issues a “no-bill” or won’t indict a person for a felony — it can basically have the same effect as a dismissal.

After the Case is Charged by Indictment or Information

Once the State files an Information (in Misdemeanors such as possession of marijuana or Driving While Intoxicated), or they attain an indictment in a felony, then getting a prosecutor to dismiss becomes even more difficult — but again — not impossible.

Many prosecutors in Texas can be very resistant to dismissals and often times will try weaker cases they think they should lose rather than appear weak on crime.  Again, the unique facts of every case govern the State’s willingness to dismiss charges short of a trial.  Some charges, like DWI and Assault/ Family Violence cases are dictated by policy in Collin County — and the Assistants District Attorneys need special permission from their superiors for dismissals.

Often a dismissal at this juncture is a result of an attorney that hustles to build a case as to why the prosecution needs to dismiss the case in the best interests of justice and/or because he convinces the prosecutors they will not only lose the case — but lose face before the citizens.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For specific legal advice about any situation you should consult an attorney directly.

Deferred Adjudication

March 14, 2010

By Collin County Criminal Attorney Jeremy Rosenthal

(972) 369-0577

Deferred adjudication in Texas is where a person charged with an offense pleads guilty or no contest and rather than being found guilty, the judge defers a finding of guilty while the accused is placed on what amounts to probation.

If the person successfully completes deferred, they are never “convicted” of the offense.  Most people are familiar with deferred because of a traffic offense or another class c misdemeanor.  Most class c deferred adjudications do make you eligible for expunction.  You are not eligible for expunction for class b misdemeanors or above in Texas, meaning your criminal record will never be completely erased.  You may be eligible for a petition for non-disclosure which is much different.

It is a dangerous, dangerous, assumption for anyone to make that if they plead guilty and accept deferred that the case merely vanishes or goes away.  Here is an interesting web site about deferred adjudication.  I’m not personally familiar with this group, but they seem to have some interesting information and statistics about deferred.

I’m not always convinced deferred is a terrible thing, but sometimes deferred can even be the devil’s candy… meaning that it sounds very tempting but it only begins your nightmare.

If you violate deferred, then you’re subject to punishment for the entire punishment range.  What this means, is that even though you get deferred on a state jail felony (that has a maximum punishment of 2 years jail — as an example), you may at first just have to report to a probation officer and do probation — but if you violate your probation — you can’t go back and fight the underlying case AND you are still subject to doing up to the entire 2 years in jail.

The federal government may treat a Texas deferred as a conviction.  Also, there are many Texas statutes and laws which simply don’t give you any benefit above and beyond a conviction.  Just as a small example, where a juvenile gets multiple dui deferred adjudications, they can later be enhanced as if they were convictions.  There are plenty of other criminal statutes  in Texas that treat deferred like a conviction.

If you’re about to accept deferred adjudication in a Texas Court, you should make sure to specifically know exactly what it is that you’re getting into by speaking with your

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For specific legal advice, you should always consult an attorney.